The strong part of the paper’s argument is the critique of the idea of self that is embedded in modern conceptions of copyright. Enlightenment and romantic thinkers conceived of the self as an autonomous individual and viewed the value of content as its originality. Postmodern theorists questioned the enlightenment and romantic ideas of authorial originality, putting authors in the context of the materials they rework and the discourses a work participates in. The article extends this questioning, using feminist theory to reframe the idea of the self as always in relation, and to reframe cultural production as created in relationship with others.

These ideas draws on the work of scholars including co-author Rosemary Coombe, Shelly Wright, Johanna Gibson, and Jennifer Nedelsky; There is a very interesting-sounding book by Nedelsky in the queue for publication that promises to develop these ideas in depth, entitled Law’s Relations: A Relational Theory of Self, Autonomy, and Law.

This feminist critique of the individualistic assumptions embedded in the concept of authorship is complementary and congenial to other aspects of the cultural critique of intellectual property. Critics including Larry Lessig, Siva Vaidhanathan, and Cory Doctorow write about “remix culture”, the idea that culture is and always has been created by reassembling and modifying existing materials. Proponents of ideas about peer production (Benkler, Bauwens, Shirky) talk about the cultural surplus that is generated from commons production. Free/Open Source software proponents (Linus Torvalds, Dan Wallach) critique the idea that quality is created by proprietary contributions, and argue that software has improved quality and security when the software creation process is transparent – with enough eyes all bugs are shallow. (The core of the Free Software argument is freedom itself, which I will get to in a bit).

However, there are a number of limitations in the feminist argument. The article attributes the idea of individual authority to a masculine conception of identity and cultural creation. But this is not inherently the case. The Rabbinic Jewish tradition conceives of cultural creation through canonical forms of re-interpretation. Rather than hailing individual creativity, this process subordinates new voices to the tradition, while using interpretive power to create new layers of tradition. The creative process was still patriarchal, though; the people with the power to create were almost all male until quite recently.

The article also advocates for the benefit of open access publishing in providing access to excluded and marginalized people. But the article is focusing on open access publishing of academic journal articles. A lay professional may be able to read the articles but almost surely isn’t going to have access to publish; let alone a working class person or nomadic woman who is a leader and arbiter for her group. The social structure and meritocracy of this particular form of publishing is the context of professional academia.

Richard Stallman and other free software proponents advocate free software with a completely open and meritocratic idea of freedom – the freedom to study a program, modify it, distribute it to help your neighbor, and give the community the benefits of your code changes. (This is meritocratic since not all changes will help a neighbor or the community at large; a developer is free to modify free software to make it unusable, buggy and insecure, also, and the community is free to review it and conclude it worse not better).

But even in contemporary peer cultures, there is still governance over who can contribute. Open source software projects have various processes for code review and determining who can commit. Licenses give coders the ability to fork, but forking is often less powerful than the ability to extend, and that is subject to governance. Wikipedia has editing standards and a tradition in a complex culture that is a challenge for outsiders to learn. Fan fiction communities define their own boundaries around canon and practice and style. The boundaries to collaborative cultural communities are created and enforced somehow, and these power and boundary structures need critique.

So, in advocating for open access academic publishing, the paper does not critique the boundary-creation process of collaborative cultural communities, accepts as a given the structure of academic authority and poses no radical alternatives. This is not a bad thing; the focus of the paper is good as it is, and this particular article has no obligation to be any more radical than it is. Advocating for open access academic publishing contributes to improving the world in an important way. But there is also room for other more radical critiques and alternative structures.

Also, by focusing on academic open access, the article refrains from grappling with other economic and legal issues relating to open access. In academia, open access reduces the economic power of traditional publishers that make large profits incommensurate with the value they add, since the peer review is contributed by fellow academics for free. But the scholars themselves are already paid a salary by the university system. In other areas of cultural production, such as nonacademic writing and free software, practitioners do not automatically have a salary paying for their cultural production. These types of collaborative production depend on different economic structures for support, and the article is silent on these challenges and changes.

As for legal analysis, the article suggests that this feminist concept of cultural production might help foster other changes in copyright law. There may well be opportunities to improve copyright law using these concepts, but this article does not explore what they might be.

That said, the article’s core argument – relating weaknesses in copyright law and practice to a critique of the notion of the individual, and reframing cultural creation in terms of relationship – is a strong and important contribution of the critique of copyright. When I saw the title and abstract, I wondered about the tactical politics of it. Having read through it, the article is primarily persuasive for fellow scholars who already understand and support feminist critique, but who may have other reasons to resist alternatives to proprietary academic publishing. And, in combination with other arguments, this argument strengthens the broader philosophical case for open access publishing and collaborative production.